48 Neb. 653 | Neb. | 1896
Rogers sued the railroad company, charging that in September, 1891, it negligently omitted to keep its right of way free from combustible materials, and permitted large quantities of grass and weeds to accumulate upon its right of way near the premises of the plaintiff, and that the servants of the railroad company negligently set fire to the grass, weeds, and combustible materials accumulated on the right of way and negligently permitted, said fire to pass upon the lands of the plaintiff, whereby 204 forest trees, of the value of f300, were burned and destroyed. The answer amounted to a general denial. There was a verdict and judgment for the plaintiff for $200, which the railroad company seeks to reverse!
The court, at the request of the plaintiff, gave the two following instructions:
“1. Section 62 of the Criminal Code of-the state of Nebraska, at page 880 of the Compiled Statutes of 1887, makes it a misdemeanor to set fire to any woods, prairies,, or other grounds whatsoever in this state. This statute reads as follows:
'Sec. 62. (Setting fire to woods and prairies.) — If any person or persons shall willfully and intentionally, or negligently and carelessly, set on fire, or cause to be set on fire, any woods, prairies,- or other grounds whatsoever, in any part of this state, it shall be deemed a misdemeanor, and every person so offending shall be punished by a fine of not less than five (5) dollars nor more than
“You are further instructed that every one has a right to presume that no one will be guilty of a misdemeanor, and is, therefore, under no obligation to anticipate such negligence to guard against it; therefore, if you find that the defendant, or its agents or employes, negligently or carelessly set fire to the material upon its right of way, and that such fire destroyed plaintiff’s property, the defendant will be liable for the damage.
“2. If you find from the evidence that the destruction of the plaintiff’s trees was the result of fire set out by the agents or employes of defendant, then you will find for the plaintiff and assess his damage at such sum as may be warranted by the evidence. Modified by the court: Provided you find that said fire was set out negligently and carelessly.”
The court should not have given the first instruction. The section referred to does not make it a misdemeanor for a man to set out fire upon his own land. To hold that it does so would require an interpretation of the proviso which would give him the privilege of setting out fire upon woods or prairies adjoining his land, within certain seasons, and upon giving notice thereof to neighbors, where he would not have any such right upon his own land. Therefore, the section had no application to this case. Powers v. Craig, 22 Neb., 621, was a case where fire
The remaining assignments go, in effect, to the sufficiency of the evidence. We think the evidence was insufficient on the question of damages. If the damage to the trees, and not the injury to the freehold, is the proper measure, then it follows that the damages should be ascertained by deducting from the value of the trees before the fire their value thereafter. In Fremont, E. & M. V. R. Co. v. Crum, supra, there was evidence from which the latter value could be ascertained. It is contended that the evidence in this case shows that the trees after the fire were of no value; but we cannot view the evidence in this light. It appears that the trees were killed and that they were afterwards removed. The plaintiff took two wagon loads home for use as fire-wood, and, gave the remainder to a neighbor as compensation for his
Reversed and remanded.